Research › Search › Judgment

J&K High Court · body

2015 DIGILAW 678 (JK)

Karnail Singh v. Iqbal Khanday

2015-12-18

BANSI LAL BHAT, N.PAUL VASANTHA KUMAR

body2015
JUDGMENT : N. Paul Vasantha Kumar, J. 1. This contempt petition is filed for the willful disobedience of judgment dated 11.09.2012 passed in WPPIL No. 15/2011. Heard Mr. Abhinav Sharma, learned counsel appearing for the petitioner and Mr. Rakesh Khajuria, AAG appearing for respondent No. 1 and Mr. Gagan Basotra, Advocate appearing for respondent No. 2. 2. On 31.12.2008 the University Grants Commission (UGC) sent a communication to all Education Secretaries of all the State Governments and Union Territories, stating that the Government of India is taking proactive measures for expansion of higher educational facilities to ensure that all the States in the country achieve the national average of gross enrollment ratio in higher education, and has decided to establish Model Degree Colleges in 374 Districts in the Country where the gross enrollment ratio in higher education is less than the national average. It was further stated that the Central assistance under the scheme shall be provided through UGC and will be limited to 1/3rd of the capital cost subject to a limit of Rs. 2.67 crores per college in the selected districts and the balance requirement of the capital cost alongwith recurring costs would have to be met by the State. It was stated that the UGC constituted an Expert Committee to prepare a Detailed Project Report on the modalities and after the report was prepared the UGC in its meeting held on 21.05.2008 resolved to ask the State Government and Union Territories to identify the suitable locations for Degree Colleges in each of the Districts where there are no colleges and the proposal were to be sent to the UGC after obtaining the State Governments willingness to contribute either on its own or through identified non-for-profit partners to meet the balance cost. The new Degree colleges were to be commenced from academic session 2009-2010. On 03.09.2009 another communication was sent by the UGC stating that for special category States the expenditure will be shared in the ratio of 1:1 i.e. 50% by the UGC and 50% by the State. It was also mentioned that an undertaking by the State Government has to be furnished before release of funds in the prescribed format. The State Universities and all the States were requested to send the proposal and a meeting of the State Education Secretaries was also fixed on 19.09.2009 at 10.30 A.M. in the UGC main office New Delhi. It was also mentioned that an undertaking by the State Government has to be furnished before release of funds in the prescribed format. The State Universities and all the States were requested to send the proposal and a meeting of the State Education Secretaries was also fixed on 19.09.2009 at 10.30 A.M. in the UGC main office New Delhi. Thereafter the State Governments were to identify the location of the Backward Districts and submit a proposal to the UGC. The respondents herein also sent proposal and in the State of J & K 11 Districts were identified as Educationally Backward Districts, namely, Anantnag, Kupwara, Doda, Budgam, Leh (Ladakh), Kargil, Poonch, Udhampur, Rajouri, Baramulla and Kathua. Even though Reasi District was formed in the year 2007 the said District was not identified for locating a College. Based on the said list submitted, the UGC sanctioned a college to Udhampur District, however, the Government of J & K by Government Order No. 264-Hr. Edu of 2011 dated 29.06.2011 instead of locating a college in Udhampur District, which was sanctioned by the UGC based on the recommendation of the State Government, ordered establishment of Model Degree College in Reasi District, namely, Government Degree College, Sarh Bagga, Mahore of District Reasi. According to the petitioners same had happened as the Education Minister at that time was hailing from that District, namely, Reasi. 3. A Public Interest Litigation was earlier filed before this Court in WPPIL No. 7 of 2008 wherein it was stated that Majalta, Chenani, Sunderbani, Kalakote, Magam and Gool have been left out to create colleges for some reasons and said writ petition was disposed of by holding that the towns/areas like that of Majalta, Chenani, Sunderbani, Kalakote, Magam and Gool deserved to be considered for setting up of Degree Colleges. The leaned Advocate General conceded before this Court that claim for setting up of Degree Colleges at Majalta, Chenani, Sunderbani, Kalakote, Magham and Gool merits to be considered. It was also assured that the State Government has already taken steps for setting up a Degree College at Majalta and in respect of other places concrete proposals will be made and same would be cleared as far as possible during the current financial year. It was also assured that the State Government has already taken steps for setting up a Degree College at Majalta and in respect of other places concrete proposals will be made and same would be cleared as far as possible during the current financial year. Recording the said statement of the learned Advocate General in paragraph 12 of the order, the said writ petition was disposed of on the expectation that the grievances of the people of Majalta and other like areas would be redressed within a reasonable time frame. 4. The establishment of Model Degree College at Sarh Bagga District Reasi instead of District Udhampur was specifically challenged in WPPIL No. 15 of 2011 and interim stay was granted by this court on 04.08.2012. Hence establishing the College at Reasi District had not taken place. The said writ petition was disposed of on 11.09.2012 on the statement made by the learned Advocate General that there is likelihood of establishment of a Degree College at Majalta within the financial year itself and same would redress the grievances of the petitioners and on the assurance given by learned Advocate General the counsel appearing for the writ petitioners stated that their grievance stands redressed. This Court also recorded the statement made by the learned Advocate General that the Government Degree College, Majalta (Udhampur) would be established within a reasonable period and on the basis of the assurance given by the learned Advocate General the interim stay granted on 04.08.2011, staying the establishment of Government Degree College, Sarh Bagga Reasi, was vacated. 5. The grievance of the petitioner now is that inspite of the assurance given by the learned Advocate General, which is recorded in the order dated 11.09.2012, and the order stating that within the financial year i.e. 2013-2014 itself the Degree College will be established at Majalta, Udhampur, this Court as well as the learned counsel for the petitioner were made to believe that Government will establish a new Degree college at Majalta, neither the College was set up nor any steps have been taken to establish the College as assured by the learned Advocate General and the said action of the State government in not complying with the assurance given by the learned Advocate General on behalf of the State Government is an act of willful disobedience and therefore, the respondents be proceeded. 6. 6. The contempt petition is pending from 28.10.2013 and on 10.06.2015 learned counsel for the petitioner was permitted to serve the papers to the learned Advocate General for getting instructions. On 09.07.2015 again the learned Senior Additional Advocate General was granted time to file details of outcome of the decision of the Committee constituted pursuant to Government Order No. 329-HE of 2012 dated 13.08.2012. Again the petition was adjourned to 25.08.2015 at the request made by learned counsel for the respondents. The case was listed on 18.11.2015, 26.11.2015, 01.12.2015, 14.12.2015, 15.12.2015 and 16.12.2015. As the Government was not responding to the contempt, the 2nd respondent was directed to remain present to explain the steps taken for implementing the assurance given by the learned Advocate General for setting up of a Degree College at Majalta (Udhampur) which was recorded in this Court order dated 11.09.2012. Pursuant to the said direction issued, response has been filed very reluctantly by the 2nd respondent today, stating that it is the prerogative of the State Cabinet in terms of Rule 14(2) of the J & K Government Business Rule, 1968 to decide the issue. However, keeping in view the order of this Court, the Education Secretary has submitted a note before the Hon'ble Minister of Education who is the competent authority to approve the proposal for placing of approval for consideration before the State Cabinet and on the approval of the Hon'ble Education Minister the memorandum will the prepared containing details of the matter to apprise the State Cabinet about the directions of the High Court and action required to implement the order which is within the competence of only the State Cabinet. The draft memorandum of the approval of the Hon'ble Education Minister is submitted to the commissioner/Secretary, General Administration Department with 35 copies. The Commissioner/Secretary, General Administration Department on the approval of Chief Secretary then places the memorandum before the State Cabinet of Ministers in his capacity as the Secretary of the Cabinet. 7. The said status report filed by the 2nd respondent reveals how casually the Government is dealing with the Court order which was passed based on the assurance given by the learned Advocate General who represented the State as early as on 11.09.2012. 7. The said status report filed by the 2nd respondent reveals how casually the Government is dealing with the Court order which was passed based on the assurance given by the learned Advocate General who represented the State as early as on 11.09.2012. The learned counsel appearing for the respondents were not in a position to say whether the State Government will establish a Degree College at Majalta (Udhampur) in academic year 2016-2017 at least. The learned counsels submitted that the Cabinet will make a call to decide the matter. The status report filed by the 2nd respondent today is also on the same lines. In such circumstances, this Court is bound to consider as to whether the Cabinet can over throw the judgment or take a decision contrary to the assurance given by the learned Advocate General before this Court which was recorded in the order dated 11.09.2012. 8. The learned Advocate General is representing the State whose statements are the statements made on behalf of the Government with full responsibility. The learned Advocate General not only assured this Court to establish a Degree College at Majalta (Udhampur) and made to believe this Court that the same will be honoured. The learned counsel appearing for the writ petitioners was also made to believe that the assurance will be honoured and believing the said assurance only the counsel for the petitioners expressed his satisfaction and this Court also on recording satisfaction choose to vacate the interim stay granted on 04.08.2011. Thus, it is manifest that the State Government through learned Advocate General has with full responsibility made an assurance which is bound to be complied with. The contention of the 2nd respondent that the State Government will make a call whether to implement the order of the Court or not, cannot be countenanced. 9. The effect of the statement of the learned Advocate General before the Court on behalf of the State Government was already considered by Hon'ble the Supreme Court in the decision reported in AIR 1990 Supreme Court 2192 (Periyar and Pareekanni Rubbers Limited v. State of Kerala). In paragraph 9 it is held thus:- "9.......We are relieved to undertake that exercise in view of fair stand taken by the Learned Advocate General. Kerala, who appeared in the High Court. In paragraph 9 it is held thus:- "9.......We are relieved to undertake that exercise in view of fair stand taken by the Learned Advocate General. Kerala, who appeared in the High Court. It is clear from the judgment that the Learned Advocate General while arguing the case had stated across the bar obviously on instructions or in fairness from record, that the market value can be fixed at Rs. 18 per cent. This is, therefore, a concession made by the Learned Advocate General on behalf of the State. The High Court, therefore, was not justified in not taking into account this submission of the Advocate General. It is undoubted that the High Court having rejected the evidence of the claimants has to confirm the offer made by the Collector in the award provided if there is no other evidence on record. But in view of the concession made by the Learned Advocate General, we are of the definite view that the claimants are entitled to the market value Rs. 18 per cent to the lands other than those to which the Collector awarded @ Rs. 30 per cent as the reference court shall not reduce the market value to less than awarded by the Collector as enjoined under the statute." 10. Again the said question, namely, how the Statement made by Advocate General of the State is to be treated, was considered by Hon'ble the Supreme Court in the decision reported in 2015 (7) SCC 373 (Himalayan Cooperative Group Housing Society v. Balwan Singh). In the said judgment, the earlier judgment cited supra was relied upon and it was held that the position of the Advocate General is unique. When he makes a statement, his statement should be treated as made with full responsibility unlike Government pleader or the private counsel who are required to act on the basis of the instructions given by their clients as per the Bar Council of India Rules. 11. In the decision reported in 2013 (10) SCC 308 (Himachal Pradesh Scheduled Tribes Employees Federation and Anr. v. Himachal Pradesh Samanaya Varg Karamchari Kalayan Mahasangh and Ors.) the effect of the statement made by the learned counsel before the court is fully explained. In paragraph 31, it is held thus. "31. 11. In the decision reported in 2013 (10) SCC 308 (Himachal Pradesh Scheduled Tribes Employees Federation and Anr. v. Himachal Pradesh Samanaya Varg Karamchari Kalayan Mahasangh and Ors.) the effect of the statement made by the learned counsel before the court is fully explained. In paragraph 31, it is held thus. "31. When a statement is made before this Court it is, as a matter of course, assumed that it is made sincerely and is not an effort to overreach the Court. Numerous matters even involving momentous questions of law are very often disposed of by this Court on the basis of the statement made by the learned counsel for the parties. The statement is accepted as it is assumed without doubt, to be honest, sincere, truthful, solemn and in the interest of justice. The statement by the counsel is not expected to be flippant, mischievous, misleading and certainly not false. This confidence in the statements made by the learned counsel is founded on the assumption that the counsel is aware that he is an officer of the Court." 12. Thus it is evident that the statement made by counsel before the Court and more particularly statement made by the learned Advocate General of the State on behalf of the State Government, binds the State Government and if statements made which are recorded, are not acted upon, the proceedings of the Court will be rendered meaningless and ultimately the Rule of law will be a casualty. 13. It is also well settled in law that when the order of the Court has become final, its implementation is mandatory. Forcing a party who succeeded before the Court to file contempt petition like execution petitions before the Trial Court is an unhealthy practice which is consuming lot of Court time and if orders of the Court are obeyed without forcing the parties to file the contempt proceedings, the Court will be in a position to decide the pending matters which will definitely reduce the pendency to a large extent. It is relevant to note at this juncture that as per the details furnished by the Registry, more than 1600 contempt petitions were preferred as on today before the Jammu and Kashmir High Court in the year 2015 and the said fact shows the defiant attitude or delay in implementing the orders of this Court. 14. It is relevant to note at this juncture that as per the details furnished by the Registry, more than 1600 contempt petitions were preferred as on today before the Jammu and Kashmir High Court in the year 2015 and the said fact shows the defiant attitude or delay in implementing the orders of this Court. 14. Learned counsel for the petitioner submitted that in the new Degree College established at Sarh Bagga Mahore District Reasi, 14 students alone are admitted. However, in Majalta area of Udhampur District students studying in 10 nearby schools can join the College as there is no Degree College in the nearby locality for undergoing higher studies. 15. The 2nd respondent even though belatedly has taken steps to put up a note before the concerned Minister and the concerned Minister having approved the same and the matter being placed before the State Cabinet only for complying with the procedural requirements, we are not expressing anything further except to say that the statement made by the learned Advocate General on behalf of the State is binding on the State as the said issue is no longer res-integra. 16. As the learned counsels appearing for the respondents have expressed their hope that the order of this Court will be given effect to, we adjourn the matter to 30.12.2015 for placing the sanction order on record. List on 30.12.2015.